on. Examination of debtor has property liable to execution which he refuses to apply toward the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear and answer under oath concerning the same before such court or judge, or before a referee appointed by such court or judge, at a time and place specified in the order. SEC. 296. On the appearance of the judgment debtor, he may be judgment debtor, examined on oath concerning his property. His examination, if proceedings thererequired by the plaintiff in the writ, shall be reduced to writing and filed with the clerk by whom the execution was issued. Either party may examine witnesses in his behalf, and if by such examination it appear that the judgment debtor has any property liable to execution the court or judge before whom the proceeding takes place, or to whom the report of the referee is made, shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, or that such property be levied on, by execution, in the manner and with the effect as provided in this chapter, or both, as may seem most likely to effect the object of the proceeding. Restraining or ment debtor. SEC. 297. At the time of allowing the order prescribed in section der against judg- two hundred and ninety-six, or at any time thereafter pending the proceeding, the court or judge may make an order restraining the judgment debtor from selling, transferring, or in any manner dispos ing of any of his property liable to execution pending the proceeding. For disobeying any order or requirement authorized by sections two hundred and ninety-five, two hundred and ninety-six, and two hundred and ninety-seven the judgment debtor may be punished as for a contempt. When judgment debtor may be ar rested. Order to exam ine garnishee, proceedings thereon. What officers SEC. 298. Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the court or judge may, upon proof by affidavit of the party, or otherwise to his satisfaction, that there is danger of the debtor leaving the district, or concealing himself therein, and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the marshal to arrest him and bring him before the court or judge. Upon being brought before the court or judge he may be examined on oath, and if it then appear that there is danger of the debtor leaving the district, and that he has property which he unjustly refused to apply to such judgment, he may be ordered to enter into an undertaking with one or more sureties that he will from time to time attend before the court or judge, as may be directed, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution. In default of entering into such undertaking he may be committed to jail by warrant of the judge. SEC. 299. Whenever the marshal, with an execution against the property of the judgment debtor, shall apply to any person or officer mentioned in subdivision three of section one hundred and forty for the purpose of levying on any property therein mentioned, such person or officer shall forthwith give to the marshal a certificate in the manner prescribed in section one hundred and forty-two. If such person or officer refuse to do so, or if the certificate be unsatisfactory to the plaintiff in the writ, he may in like manner have the order prescribed in such section against such person or officer. Thereafter the proceeding upon such order shall be conducted in the manner prescribed from section one hundred and fifty-two to section one hundred and sixty-one, inclusive. SEC. 300. No public officer shall be liable as garnishee for moneys in not liable to an- his possession as such officer, belonging to or claimed by any judgment swer as garnishee. debtor. Sec. CHAPTER THIRTY-TWO. OF ACTIONS TO RECOVER THE POSSESSION OF REAL PROPERTY. 301. Who may bring such action, and 302. When landlord may be made de- 305. What the jury shall find by their 306. What damages may be recovered, and when the value of permanent improvements may be set off against such damages. 307. Verdict when right of possession expires after commencement of action. Who may bring SEC. 301. Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, such action, and with damages for withholding the same, by an action. Such action against whom. shall be commenced against the person in the actual possession of the property at the time, or, if the property be not in the actual possession of anyone, then against the person acting as the owner thereof. SEC. 302. A defendant who is in actual possession may, for answer, When landlord plead that he is in possession only as a tenant of another, naming him may be made defendant in place of and his place of residence; and thereupon the landlord, if he apply tenant. therefor, shall be made defendant in place of the tenant, and the action shall proceed in all respects as if originally commenced against him. If the landlord do not apply to be made defendant within the day the tenant is allowed to answer, thereafter he shall not be allowed to, but he shall be made defendant if the plaintiff require it. If the landlord be made defendant on motion of the plaintiff, he shall be required to appear and answer within twenty days from notice of the pendency of the action and the order making him defendant, or such further time as the court or judge thereof may prescribe. What to be SEC. 303. The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee, for life, or for a term pleaded in complaint. of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage in such sum as may be therein claimed. The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had. SEC. 304. The defendant shall not be allowed to give in evidence any Defendant not estate in himself, or another in the property, or any license or right to to be allowed to the possession thereof, unless the same be pleaded in his answer. If certain matters, so pleaded, the nature and duration of such estate, or license, or right unless. to the possession shall be set forth with the certainty and particularity required in a complaint. If the defendant does not defend for the whole of the property, he shall specify for what particular part he does defend. In an action against a tenant the judgment shall be conclusive Judgment, when against the landlord who has been made defendant in place of the ten- conclusive against landlord, ant to the same extent as if the action had been originally commenced against him. SEC. 305. The jury by their verdict shall find as follows: First. If the verdict be for the plaintiff, that he is entitled to the possession of the property described in the complaint, or some part give evidence in What the jury shall find by their verdict. What damages thereof, or some undivided share or interest in either, and the nature and duration of his estate in such property part thereof, or undivided share or interest in either, as the case may be; Second. If the verdict be for the defendant, that the plaintiff is not entitled to the possession of the property described in the complaint, or to such part thereof as the defendant defends for, and the estate in such property or part thereof, or license or right to the possession of either, established on the trial by the defendant, if any; in effect as the same required to be pleaded. SEC. 306. The plaintiff shall only be entitled to recover damages for may be recovered. withholding the property for the term of six years next preceding the commencement of the action, and for any period that may elapse from such commencement to the time of giving a verdict therein, exclusive -allowance for of the use of permanent improvements made by the defendant. When improvements. permanent improvements have been made upon the property by the defendant, or those under whom he claims, holding under color of title adversely to the claim of plaintiff, in good faith, the value thereof at the time of trial, not exceeding such damages, shall be allowed as a set-off. Verdict when SEC. 307. If the right of the plaintiff to the possession of the propright of posesssion expires after com- erty expire after the commencement of the action, and before the trial, mencement of ac- the verdict shall be given according to the fact, and judgment shall be given only for the damages. tion. erty. SEC. 308. The court or judge thereof, on motion, and after notice survey of the prop to the adverse party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy, and make survey and admeasurement thereof, for the purposes of the Action not to be prejudiced by al in possession. action. SEC. 309. The order shall describe the property, and a copy thereof shall be served upon the defendant, and thereupon the party may enter upon the property and make such survey and admeasurement, but if any unnecessary injury be done to the premises he shall be liable therefor. SEC. 310. An action for the recovery of the possession of real propenation of person erty against a person in possession can not be prejudiced by any alienation made by such person either before or after the commencement of the action; but if such alienation be made after the commencement of the action, and the defendant does not satisfy the judgment recovered for damages for withholding the possession, such damages may be recovered by action against the purchaser. Mortgagee can not maintain action against mortgagor. Action by ten ant in common or SEC. 311. A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law, and a judgment thereon. SEC. 312. In an action for the recovery of dower before admeasurefor dower, what ment, or by a tenant in common of real property against a cotenant, must be shown. the plaintiff shall show, in addition to the evidence of his right of possession, that the defendant either denied the plaintiff's right or did some act amounting to such denial. Action against to pay rent. SEC. 313. When in case of a lease of real property and the failure lessee on failure of tenant to pay rent, the landlord has a subsisting right to reenter for such a failure, and may bring an action to recover the possession of such property, and such action is equivalent to a demand of the rent and a reentry upon the property. But if, at any time before judgment in such action, the lessee or his successor in interest as to the whole or a part of the property pay to the plaintiff or bring into court the amount of rent then in arrear, with interest, and the costs of the action, and perform the other covenants or agreements on the part of the lessee, he shall be entitled to continue in the possession according to the terms of the lease. upon whom. SEC. 314. In an action to recover the possession of real property the When judgment judgment therein shall be conclusive as to the estate in such property conclusive, and and the right to the possession thereof, so far as the same is thereby determined, upon the party against whom the same is given and against all persons claiming from, through, or under such party after the commencement of such action, except as in this section provided. When service of the summons is made by publication and judgment is given for want of answer, at any time within two years from the entry thereof, the defendant or his successor in interest as to the whole or any part of the property shall, upon application to the court or judge thereof, be entitled to an order vacating the judgment and granting him a new trial upon the payment of the costs of the action. SEC. 315. If the plaintiff has taken possession of the property before Possession not to the judgment is set aside and a new trial granted, as provided in the be affected by orsection last preceding, such possession shall not be thereby affected in der allowing new any way, and if judgment be given for the defendant in the new trial he shall be entitled to restitution by execution in the same manner as if he were plaintiff. trial. SEC. 316. In an action to recover the possession of real property by Admeasurement a tenant in dower or his successor in interest, if such a state in dower of dower after judgment. has not been admeasured before the commencement of the action, the plaintiff shall not have execution to deliver the possession thereof until the same be admeasured, as follows: First. At any time after the entry of judgment in favor of the plaintiff, he may, upon notice to the adverse party, move the court for the appointment of referees to admeasure the dower out of the real property of which the possession is recovered by the action. The court shall allow such motion unless it appear probable on the hearing that a partition of such property can not be made without prejudice to the interests of the other owners. In the latter case the court shall disallow the motion, and thereafter the plaintiff shall only proceed for partition or sale of such real property as provided in the chapter of this code entitled "Of Actions for the Partition of Real Property;" Second. If the court allow the motion, thereafter the proceedings shall be conducted as provided in such chapter. At any time after the confirmation of the report of the referees the plaintiff may have execution for the delivery of the possession of the property according to the admeasurement thereof, and for the damages recovered, if any, for withholding the same, if such damages remain unsatisfied; Third. If the motion for admeasurement be made at the term at which judgment was given, the notice thereof shall be served on the adverse party at such time as the court by general rule or special order may prescribe. CHAPTER THIRTY-THREE. OF ACTIONS FOR NUISANCE, WASTE, AND TRESPASS ON REAL PROPERTY. Sec. 317. Private nuisance, and action therefor; when warrant allowed to abate it. 318. How warrant issued, and mode of proceeding under. 319. When defendant may have stay of warrant. Sec. 320. Sureties in undertaking, when to 321. Action for waste, and judgment 322. Actions for trespass in particular therefor; when SEC. 317. Any person whose property is affected by a private Private nuinuisance, or whose personal enjoyment thereof is in like manner sance, and action thereby affected, may maintain an action for damages therefor. If warrant allowed judgment be given for the plaintiff in such action, he may, in addition to abate it. How warrant under. to the execution to enforce the same, on motion, have an order allowing a warrant to issue to the marshal to abate such nuisance. Such motion must be made at the term at which judgment is given, and shall be allowed of course, unless it appear on the hearing that the nuisance has ceased, or that such remedy is inadequate to abate or prevent the continuance of the nuisance, in which latter case the plaintiff may proceed to have the defendant enjoined. SEC. 318. If the order be made, the clerk shall thereafter, at any issued, and mode time within six months, when requested by the plaintiff, issue such of proceeding warant directed to the marshal, requiring him forthwith to abate the nuisance at the expense of the defendant, and return the warrant as soon thereafter as may be, with his proceedings indorsed thereon. The expense of abating the nuisance may be levied by the marshal on the property of the defendant, and in this respect the warrant is to be deemed an execution against property. When defend of warrant. SEC. 319. At any time before the order is made, or the warrant ant may have stay issues, the defendant may, on motion to the court or judge thereof, have an order to stay the issue of such warrant for such period as may be necessary, not exceeding six months, and to allow the defendant to abate the nuisance himself, upon his giving an undertaking to the plaintiff in a sufficient amount, with one or more sureties, to the satisfaction of the court or judge thereof, that he will abate it within the time and in the manner specified in such order. Sureties in un SEC. 320. If the plaintiff is not notified of the time and place of the dertaking, when application for the order provided for in section three hundred and to justify. nineteen, the sureties therein provided for shall justify as bail upon arrest, otherwise such justification may be omitted, unless the plaintiff require it. If such order be made and undertaking given, and the defendant fails to abate such nuisance within the time specified in said order, thereafter, at any time within six months, the warrant for the abatement of the nuisance may issue as if the same had not been staved. therein. Action for waste, SEC. 321. If a guardian, tenant in severalty or in common for life and judgment or for years, of real property, commit waste thereon, any person injured thereby may maintain an action for damages therefor against such guardian or tenant, in which action there may be judgment for treble damages, forfeiture of the estate of the party committing or permitting the waste, and of eviction from the property. But judg ment of forfeiture and eviction shall not be given in favor of the person entitled to the reversion against the tenant in possession when the injury to the estate in reversion is determined in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done or suffered in malice. Actions for tres pass in particular cases, and of judgment therein. -casual or involuntary pass. SEC. 322. Whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree, timber, or shrub on the land of another person, or on the street or highway in front of any person's house, village, town, or city lot, or cultivated grounds, or on the commons or public grounds of any village, town, or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town, or city against the person committing such trespasses, or any of them, if judgment be given for the plaintiff it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be. SEC. 323. If upon the trial of such action it shall appear that the tres- trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodland for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages. |